SC1455
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC (OS) NO 6 of 2015

IN THE MATTER OF THE CONSTITUTION, SECTION 18(1)

APPLICATION BY
SIR MAKENA GENO KBE

ATTORNEY-GENERAL
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Intervener

Waigani: Cannings J, Logan J, Ipang J
2015: 2, 4 September

CONSTITUTIONAL LAW – practice and procedure – application under s 18(1) (original interpretative jurisdiction of the Constitution) – locus standi – competency of application – challenge to validity of provision in s 4(2) and 4(3) of the Constitutional Office-holders Retirement Benefits Act 1986 for payment of pension by way of retirement benefit to certain constitutional office holders – applicant a former Auditor-General and, as such, a former constitutional office-holder – payment of applicant's pension ceased in 2010, 12 years after expiration of his last term of office – whether the applicant had standing to challenge validity – Constitution ss 18, 223 – Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, s 10 – Constitutional Office-holders Retirement Benefits Act 1986.

The applicant filed an application in the Supreme Court under Section 18(1) of the Constitution raising questions as to the validity of the Constitutional Office-holders Retirement Benefits Act 1986 and decisions made under that Act to cease payment of a pension to him as a former constitutional office-holder. The Supreme Court Rules 2012 require that before an application under Section 18(1) of the Constitution can be heard, the Court should declare that the applicant has standing. The applicant requested the Court to declare that he has standing. The request was opposed by the intervener in the application, the Attorney-General, who objected to the competency of the application and argued, as to standing, that the applicant lacked a sufficient interest in the subject matter of the application and that other criteria for granting a declaration as to standing were not satisfied. 

Held:

(1)	The application was competent in that it regularly invoked the Supreme Court's original jurisdiction under s 18(1) of the Constitution.

(2) 	The applicant's status as a former constitutional office-holder in receipt, until its purported cessation, of a pension under the Constitutional Office-holders Retirement Benefits Act 1986 gave him standing to challenge, in the original jurisdiction conferred on the Supreme Court by s 18(1) of the Constitution, the constitutional validity of that Act and, in particular, its provisions purporting to cease his pension payment: Re Petition of M T Somare (1981) PNGLR 265, Namah v Pato SC1304 and In re Application by Ila Geno SC1313 applied.

Cases cited

The following cases are cited in the judgment:

In re Application by Ila Geno (2014) SC1313
Namah v Kua (2014) SC1342
Namah v Pato (2014) SC1304
Re Petition of M T Somare [1981] PNGLR 265

Counsel

T M Kamuta, for the Applicant 
P Kewa, for the Intervener

4th September, 2015 

1. BY THE COURT: Sir Makena Geno KBE, who held the office of Auditor-General of Papua New Guinea between 1983 and 1998, has instituted proceedings in the Supreme Court by which he seeks declaratory relief concerning whether the provisions of the Constitutional Office-Holders Retirement Benefits Act 1986 for retirement benefits by way of pension to certain constitutional office-holders is inconsistent with s 223(2)(b) of the Constitution.

2. Section 223 of the Constitution contains a number of general provisions in respect of a "constitutional office-holder", as defined by s 221. The Auditor-General is one of those defined by s 221 to be a constitutional office-holder: s 221(h). By s 223(1) of the Constitution, it is provided that, subject to the Constitution, "Organic Laws shall make provision for and in respect of the qualifications, appointment and terms and conditions of employment of constitutional office-holders". It is further provided, by s 223(2)(b) of the Constitution, that:

In particular, Organic Laws shall make provision guaranteeing the rights and independence of constitutional office-holders by, amongst other things … providing that at the end of their periods of office, they are entitled, unless they have been dismissed from office, to suitable further employment by a government body, or to adequate and suitable pensions or other retirement benefits, or both, subject to such reasonable requirements and conditions (if any) as are laid down by an Organic Law.

3. There is an Organic Law applicable to the rights of constitutional office-holders: the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders. The Constitutional Office-Holders Retirement Benefits Act 1986 is not an Organic Law. It was, though, pursuant to this Act, that Sir Makena was paid a pension from the end of his last term of office as Auditor-General in 1998, until 2010. 

4. At the time that Sir Makena's last term of office ceased, he was 49 years, 7 months old. Payment of his pension ceased after 12 years in purported compliance with 4(2) of the Constitutional Office-Holders Retirement Benefits Act. That was on the basis that, because he had not reached the age of 50 at the time when his tenure of office ceased and the effect, if valid, of s 4(2) was that, at his then age and because his tenure in office exceeded 9 years, pension was only payable to him for a period of 12 years after he ceased to hold office.

CHALLENGE 

5. In essence, Sir Makena's challenge alleges two bases of invalidity:

(a)	s 223 requires that the provision for retirement benefits be by way of Organic Law, but the Constitutional Office-Holders Retirement Benefits Act is not a law of that character; and

(b)	in any event, the 12-year pension limitation is not "adequate and suitable".

6. Though the nature of the relief sought is tolerably clear, it may be, as was observed by the Court to counsel in the course of oral submissions, that some refinement by amendment of the declaratory relief sought is necessary, if only to delete the interrogative word, "whether". 

7. It is no part of our present task to rule on the merits of Sir Makena's challenge. Rather, our task, correctly anticipated in Sir Makena's application, is that of deciding whether or not to declare that he has standing or "locus standi" to pursue his challenge under s 18(1) of the Constitution. The making of a declaration that an applicant has standing is a condition precedent to an application under s 18(1) of the Constitution being heard on the merits.

8. The Supreme Court has an original jurisdiction, conferred by and entrenched in s 18(1) of the Constitution, "as to any question relating to the interpretation or application of a Constitutional Law". Sir Makena's application poses such questions, but it is not any person who is entitled to invoke this original jurisdiction. Whether or not a person has standing to invoke the jurisdiction is governed by what have come to be known as "the Somare rules", so named for the case which first explored this aspect of the original jurisdiction of the Supreme Court, Re Petition of M T Somare [1981] PNGLR 265. The 'Somare rules', have recently been the subject of further exposition in a series of decisions in 2014: Namah v Pato (2014) SC1304, In re Application by Ila Geno (2014) SC1313 and Namah v Kua (2014) SC1342. Further exposition in respect of the test for standing is not necessary, only to apply that test to the circumstances of this case.

'SOMARE RULES'

9. The Somare rules may be described as:

(a)	The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:

(i)	has personal interests or rights that are directly affected by the subject matter of the application; or

(ii)	is a citizen who has a genuine concern for the subject matter of the application; or

(iii)	is the holder of a public office, the functions of which relate to the subject matter of the application. 

(b)	The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues.

(c)	The applicant must not be a mere busybody meddling in other people's affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay.

(d)	The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing.

10. This is as clear and compelling a case as one might find, having regard to the Somare rules, of a person who has standing to invoke the Supreme Court's original jurisdiction conferred by s 18(1) of the Constitution. Sir Makena is no "busybody". He was a constitutional office-holder and it is his pension which has ceased in the purported application of a law which he alleges to be invalid. No improper motive attends his application. The questions which he seeks to raise are not hypothetical but very real, given that it is his pension which has ceased. They are in no way trivial. Assurance of adequate or suitable retirement benefits is conducive to independence and resistance to corruption in the discharge of certain high public offices which are essential to government of the Nation according to law, hence the express provision found in s 223 of the Constitution. The questions raised by the application relate to the interpretation or application of this Constitutional Law. 

OBJECTION TO COMPETENCY

11. Contrary to the submissions of the Attorney-General as intervener, made in support of an objection to competency, it is nothing to the point that Sir Makena had already commenced proceedings in the National Court seeking declaratory relief in respect of his asserted continued pension right. It is true that a reference might have been made by that court under s 18(2) of the Constitution of the matters raised by the present application. Instead what has occurred is that proceedings in the National Court have been stayed, in anticipation by the learned National Court judge of the bringing of this very application by Sir Makena. The Attorney's related submission as to the form by which this proceeding was instituted is likewise irrelevant, as that submission related to how a reference proceeding under s 18(2) may be instituted, not as to how a s 18(1) proceeding such as the present may be instituted.

12. It is likewise nothing to the point that Sir Makena chose not, as was apparently suggested to him by the Auditor-General's office in 2011, to consult with the Ombudsman Commission to the end of persuading it to refer for this Court's opinion, under s 19 of the Constitution, the questions which he now seeks to raise. That is an alternative path which he could have followed but it is to be remembered that the Ombudsman Commission would not have been obliged to accede to any request to refer made of him by Sir Makena. As to the so-called "inordinate delay" to which the Attorney also referred, it is also to be remembered that, if the questions have merit, the person who has been kept out of his money by the delay is Sir Makena. The passage of time has not rendered the questions academic or hypothetical.

13. The Attorney's submissions also conflated and confused the question of whether Sir Makena had standing with the merits of his application. 

14. This misunderstanding appears to us also to have informed the objection to competency made by the Attorney. Of course, if an application entails no question relating to the interpretation or application of a Constitutional Law, it will not invoke the jurisdiction conferred on this Court by s 18(1) of the Constitution and will therefore be incompetent. But an application can pose a question relating to the interpretation or application of a Constitutional Law and thus validly invoke that jurisdiction even though it may later transpire, in the exercise of that jurisdiction, that the Court decides the question adversely to an applicant. 

15. This application, as we have already stated, does raise questions which relate to the interpretation or application of a Constitutional Law. That remains so notwithstanding a further submission made by the Attorney that no such question was raised because there was an Organic Law guaranteeing the rights and independence of constitutional office-holders, an Organic Law of that very name, the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders. But one of Sir Makena's points of contention is that the limitation which resulted in the cessation of his pension is found not in an Organic Law but in an Act of Parliament, the Constitutional Office-Holders Retirement Benefits Act. 

16. Another submission made by the Attorney was that Sir Makena fell within the terms of the exclusion found in s 10(1)(c) of the Organic Law and that, as a result, no questions which related to the interpretation or application of a Constitutional Law. But even if it were applicable, this exclusion would not mean that questions relating to the interpretation or application of s 223 of the Constitution had not been raised. Further, the exclusion found in s 10(1)(c) of this Organic Law applies only to "a first appointee to the constitutional office who was immediately prior to the appointment an officer of the pre-Independence Public Service". Sir Makena was an officer of the pre-Independence Public Service. He was appointed to the public service in the then Australian External Territory administration in 1970. However, he did not take office as Auditor-General until 1983. He was not a first appointee to that constitutional office. Further, when he was appointed, he was not then an officer in the pre-Independence Public Service. Papua New Guinea had by then been independent for eight years. The exclusion found in s 10(1)(c) of the Organic Law has no application to him in any event.

17. The objection to competency is misconceived and without merit. Sir Makena is entitled to a declaration that he has standing to bring the application. 

COSTS 

18. Given that the Attorney chose to contest what was a clear case for a declaration as to standing and also to make a misconceived objection to competency, the case is one where Sir Makena should have the benefit of an order for costs in his favour in respect of this interlocutory stage of the case.

ORDER

(1)	The applicant, Sir Makena Geno KBE, has standing to make the application.

(2)	The objection to competency is dismissed.

(3)	The intervener is to pay the applicant's costs of and incidental to the application for a declaration as to standing and the objection to competency, to be taxed, if not agreed.

Judgment accordingly.
__________________________________________________________________
Kamutas Legal Services: Lawyers for the Applicant 
Solicitor-General: Lawyers for the Intervener